Opinion
CRIMINAL ACTION No. 09-296
10-03-2011
UNITED STATES OF AMERICA v. GUY MANNING, JR.
ORDER
Before the Court is a motion for post-conviction relief filed by defendant, Guy Manning, Jr. ("Manning), pursuant to 28 U.S.C. § 2255. Manning argues that he received ineffective assistance from his retained counsel following his sentencing on September 2, 2010. He swears that he directed counsel to file a notice of appeal and that counsel failed to do so. Manning requests that this Court permit him to file an out-of-time appeal.
R. Doc. No. 56.
R. Doc. No. 56, p. 13.
R. Doc. No. 56, p. 12.
The government initially opposed Manning's motion for relief. This Court was recently informed, however, that the government has formally withdrawn its opposition and it requests that Manning be granted an opportunity to file an out-of-time appeal.
R. Doc. No. 61.
R. Doc. No. 66, p. 2.
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In United States v. West, 240 F.3d 456 (5th Cir. 2001), the Fifth Circuit set forth the procedure for granting an out-of-time appeal pursuant to a § 2255 motion: this Court must grant Manning an out-of-time appeal, dismiss his § 2255 motion without prejudice, and reinstate his criminal judgment on the docket. Id. at 259-62.
Accordingly, in light of the Fifth Circuit's instructions in West,
IT IS ORDERED that Manning is GRANTED leave to file an out-of-time appeal and that the Clerk of Court is directed to REINSTATE the criminal judgment. Pursuant to Fed. R. App. P. 4(b)(1)(A)(i), in order to file a timely appeal, Manning must file a notice of appeal within 14 days of entry of judgment.
IT IS FURTHER ORDERED that Manning's § 2255 motion is DISMISSED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that the evidentiary hearing in this matter scheduled for Friday, October 21, 2011, at 8:30 a.m. is CANCELLED.
New Orleans, Louisiana, October 3, 2011.
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE